Gujarat High Court
Narendrakumar @ Nitinbhai Manilal Shah ... vs State Of Gujarat & on 17 January, 2014
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.MA/19853/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER)
NO. 19853 of 2013
With
CRIMINAL MISC.APPLICATION NO. 18703 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the judgment ? NO
4 Whether this case involves a substantial question of law as to the interpretation NO
of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO
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NARENDRAKUMAR @ NITINBHAI MANILAL SHAH & 2....Applicants
Versus
STATE OF GUJARAT & 1....Respondents
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Applicants
MR KP RAVAL, ADDL.PUBLIC PROSECUTOR for the Respondent-State.
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 17/01/2014
CAV JUDGMENT
1. Both these petitions seek quashment of the proceedings instituted under Sections 18, 19, 20 and 21 of the Protection of Women from Domestic Violence Act, 2005 ( for short "D.V.Act" ).
2. Learned counsel were requested to assist this Court on the Page 1 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT questions:
(i) Whether D.V.Act predominantly provides for civil remedies?
(ii) If yes, whether Section 482 of Code of Criminal Procedure can be applied for quashing of such civil proceedings?
The learned counsel are heard on these questions.
3. Before embarking upon the arguments made by the learned counsel, it is necessary to examine the relevant scheme of D.V.Act as also Code of Criminal Procedure ( for short "Cr.P.C." ).
SCHEME OF D.V.ACT AND CR.P.C.
4. As per Section 2(g) of D.V.Act, the "domestic violence" has the same meaning as assigned to it in Section 3, and Section 3 defines in detail the acts which constituting domestic violence. The section is quoted herein for convenience:
"3. Definition of domestic violence.For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it
(a) harms or injures or endangers the health, safety, life, limb or wellbeing, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or Page 2 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.For the purposes of this section,
(i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) "verbal and emotional abuse" includes
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) "economic abuse" includes
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by Page 3 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Explanation II.For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence"
under this section, the overall facts and circumstances of the case shall be taken into consideration."
[emphasis supplied] 4.1 Section 2(e) defines "domestic incident report" so as to mean the report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person.
4.2 As per Section 2(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. As per Section 2(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. As per Section 2(q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under D.V. Act.
Page 4 of 29R/CR.MA/19853/2013 CAV JUDGEMNT
5. Various authorities and institutions like Protection Officers, Shelter Homes, Service Providers have been created with their duties defined in Chapter III of the D.V.Act which runs as under:
"4. Information to Protection Officer and exclusion of liability of informant. (1) Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer.
(2) No liability, civil or criminal, shall be incurred by any person for giving in good faith of information for the purpose of subsection (1).
5. Duties of police officers, service providers and Magistrate.A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person
(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
(d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987);
(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant:Page 5 of 29
R/CR.MA/19853/2013 CAV JUDGEMNT Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence.
6. Duties of shelter homes.If an aggrieved person or on her behalf a Protection Officer or a service provider requests the person in charge of a shelter home to provide shelter to her, such person in charge of the shelter home shall provide shelter to the aggrieved person in the shelter home.
7. Duties of medical facilities.If an aggrieved person or, on her behalf a Protection Officer or a service provider requests the person in charge of a medical facility to provide any medical aid to her, such person in charge of the medical facility shall provide medical aid to the aggrieved person in the medical facility.
xxx xxx xxxx xxxx
9. Duties and functions of Protection Officers.(1) It shall be the duty of the Protection Officer
(a) to assist the Magistrate in the discharge of his functions under this Act;
(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;
(c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;
(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 (39 of 1987) and make available free of cost the prescribed form in which a complaint is to be made;
Page 6 of 29R/CR.MA/19853/2013 CAV JUDGEMNT
(e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;
(f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;
(g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;
(h) to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
(i) to perform such other duties as may be prescribed.
(2) The Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act.
10. Service providers.(1) Subject to such rules as may be made in this behalf, any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or a company registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force with the objective of protecting the rights and interests of women by any lawful means including providing of legal aid, medical, financial or other assistance shall register itself with the State Government as a service provider for the purposes of this Act.
(2) A service provider registered under subsection (1) shall have the power to
(a) record the domestic incident report in the prescribed form if the aggrieved person so desires and Page 7 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence took place;
(b) get the aggrieved person medically examined and forward a copy of the medical report to the Protection Officer and the police station within the local limits of which the domestic violence took place;
(c) ensure that the aggrieved person is provided shelter in a shelter home, if she so requires and forward a report of the lodging of the aggrieved person in the shelter home to the police station within the local limits of which the domestic violence took place.
(3) No suit, prosecution or other legal proceeding shall lie against any service provider or any member of the service provider who is, or who is deemed to be, acting or purporting to act under this Act, for anything which is in good faith done or intended to be done in the exercise of powers or discharge of functions under this Act towards the prevention of the commission of domestic violence.
(emphasis supplied)
6. Section 12 prescribes the procedure for obtaining orders for various reliefs contemplated under the Act. The relevant part of the section can be quoted hereunder.
"12. Application to Magistrate. (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.Page 8 of 29
R/CR.MA/19853/2013 CAV JUDGEMNT (2) The relief sought for under subsection (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
xxx xxxx
(3) xxxxx xxxx
(4) xxx xxx xxx
(5) xxx xxx xxx
(emphasis supplied)
7. Sections 17 to 22 of the D.V.Act provides for various rights available to aggrieved person as also authority of the Magistrate to pass various orders. For convenience the said provisions run thus: "17. Right to reside in a shared household.(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
18. Protection orders. The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place , pass a protection order in favour of the aggrieved person and prohibit the respondent from
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
Page 9 of 29R/CR.MA/19853/2013 CAV JUDGEMNT
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
19. Residence orders.(1) While disposing of an application under subsection (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or Page 10 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under subsection (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under subsection (1), subsection (2) or subsection (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under subsection (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer incharge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.
20. Monetary reliefs.(1) While disposing of an application Page 11 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT under subsection (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the `domestic violence' and such relief may include, but not limited to,
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under subsection (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under subsection (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under subsection (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable Page 12 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT by the respondent.
21. Custody orders.Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:
Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.
22. Compensation orders.In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.
23. Power to grant interim and ex parte orders.(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent."
(emphasis supplied)
8. As per Section 26, in addition to the reliefs sought for under Sections 18 to 22 of D.V.Act concerning aggrieved person and respondent whether instituted before or after commencement of D.V.Act may also be sought in Civil Court, Family Court or Page 13 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT Criminal Court. Subsec.3 thereof casts an obligation upon an aggrieved person to bring to the notice of the Magistrate the factum of having obtained such reliefs.
9. Section 27 contemplates jurisdiction of the Magistrate and Section 28 prescribes the procedure to be followed in the proceedings under Sections 12, 18, 19, 20, 21, 22, 23 and 31 of the D.V.Act. The said provisions are quoted hereunder:
"27. Jurisdiction.(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made under this Act shall be enforceable throughout India.
28. Procedure.(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in subsection (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under subsection (2) of section 23."
10. Section 29 contemplates appeal against the orders made by the Magistrate. The provision is quoted hereunder:
Page 14 of 29R/CR.MA/19853/2013 CAV JUDGEMNT "29. Appeal.There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later."
11. Section 30 declares the Protection Officers and service providers to be public servants within the meaning of Section 21 of Indian Penal Code ( for short "IPC" ) and Section 31 declares breach of protection order, or of an interim protection order, by the respondent to be an offence punishable with imprisonment and fine. It also empowers the Magistrate to frame the charge under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions, whereas Section 32 speaks about cognizance of the offence committed under Section 31 of D.V.Act and Section 33 penalises the dereliction of the duty by the Protection Officer. Section 36 clarifies that the provisions of D.V.Act are in addition to, and not in derogation of the provisions of any other law, for the time being in force. Rest of the provisions are not relevant for the purpose of these petitions.
12. Object and reasons of D.V.Act throw considerable light on the issues in question. Para 3 and 4 thereof read as under: "3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurance of domestic violence in the society."
( emphasis supplied)
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"4. The Bill, inter alia, seeks to provide for the following
(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.
(ii) It defines the expression "domestic violence" to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
(iii) It provides for the rights of a women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.
(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.
(v) It provides for appointment of Protection Officers and registration of nongovernmental organisations as service providers for providing assistance to the aggrieved person Page 16 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT with respect to her medical examination, obtaining legal aid, safe shelter etc."
13. The broad scheme of Cr.P.C. as is relevant for the purpose of these petitions is discussed hereunder:
13.1 Section 2 defines various clauses like "bailable offence", "charge", "cognizable offence", "complaint", "inquiry", "investigation", "judicial proceeding", "metropolitan area", "non cognizable offence", "offence", "officer in charge of a police station", "police report", "police station", "public prosecutor", "summonscase", "victim", "warrant case".
13.2 Section 4 provides for trial of offences under the Indian Penal Code and other laws which runs as under:
"(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
(emphasis supplied) 13.3 The expression "offence" as defined in Section 2(n) of Cr.P.C. reads thus: " `offence' means any act or omission made punishable Page 17 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattletresspass Act, 1871 (1 of 1871)."
13.4 Chapter II speaks about constitution of criminal courts and offices. According to Section 6, apart from High Courts and other courts constituted under different laws, the following criminal courts are contemplated:
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
13.5 Chapter III deals with power of courts.
Section 26 thereof reads as under: "26. Courts by which offences are triable : Subject to the other provisions of this Code
(a) any offence under the Indian Penal Code (45 of 1860) may be tried by
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule to be triable;
[Provided that any [offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal code (45 of 1860) shall be tried as far as practicable by a Court presided over by a woman]."
(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried Page 18 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT by such Court and when no Court is so mentioned, may be tried by
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First Schedule to be triable."
13.6 Sections 28, 29, 30, 31 invest jurisdiction/powers in various courts to pass the defined sentences as also the nature of sentences.
13.7 Chapter IV speaks about powers of superior officers of police as also aid to the Magistrates and the Police.
13.8 Section 37 contained in Chapter IV casts duty upon an individual to assist the Magistrate or a police officer reasonably demanding his aid in taking or preventing the escape of any person whom such Magistrate or police officer is authorised to arrest; or in the prevention of suppression of a breach of the peace; or in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.
13.9 Section 38 speaks about aid to a person, other than police officer, executing warrant and Section 39 casts obligation upon every person, aware of the commission of, or of the intention of any other person to commit any offence punishable under various provisions mentioned therein to forthwith give information to the Magistrate or to a police officer.
13.10 Section 40 speaks about duty of officers employed in
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connection with the affairs of a village as also the resident of a village, to make certain report in relation to the crime, criminals, their abode or place if any in the knowledge of such officer or villager, wherefrom suspect/accused can be found etc. 13.11 Section 41 deals with arrest of suspect of an offence without warrant. Section 51 empowers the competent officer to make a search of arrested person and Section 52 empowers to seize offensive weapons. This chapter also contemplates rights of the police officer as also the safety measures for the person accused.
13.12 Rest of the relevant scheme under Cr.P.C. is thus:
Chapter VI processes to compel appearance. Chapter VII processes to compel the production of things. Chapter VIIA reciprocal arrangements for assistance in certain matters and procedure for attachment and forfeiture of property. Chapter VIII security for keeping peace and for good behaviour. Chapter IX order for maintenance of wives, children and parents.
Chapter X maintenance of public order and tranquility. Chapter XI police to take certain preventive action. Chapter XII information to the police in cognizable cases, non cognizable cases and the powers of the police to investigate and record statement and submit report to the Magistrate. Chapter XIII jurisdiction of the criminal courts in inquiries and trials.
Chapter XIV conditions requisite for initiation of proceedings. Chapter XV complaints to Magistrates.Page 20 of 29
R/CR.MA/19853/2013 CAV JUDGEMNT Chapter XVI commencement of proceedings before Magistrates. Chapter XVII charge.
Chapter XVIII trial before a court of session. Chapter XIX trial of warrant cases by Magistrates. Chapter XX trial of summons cases by Magistrates. Chapter XXI summary trials.
Chapter XXIA plea bargaining.
Chapter XXII attendance of persons confined or detained in prisons.
Chapter XXIII evidence in inquiries and trials. Chapter XXIV general provisions as to inquiries and trials. Chapter XXV provisions as to accused persons of unsound mind. Chapter XXVI provisions as to offence affecting the administration of justice.
Chapter XXVII the judgment.
Chapter XXVIII submission of death sentences for confirmation. Chapter XXIX appeals.
Chapter XXX reference and revision.
Chapter XXXI transfer of criminal cases. Chapter XXXII execution, suspension, remission and commutation of sentences.
Chapter XXXIII provisions as to bail and bonds. Chapter XXXIV disposal of property which may be subject matter of offence.
Chapter XXXV irregular proceedings and its effect. Chapter XXXVI limitation for taking cognizance of certain offences.
Chapter XXXVII deals with miscellaneous provisions which contains Page 21 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT Section 482 which reads as under:
"482. Saving of inherent power of High Court : Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any other under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
SUBMISSIONS:
14. The argument is that the expression "violence" used in D.V.Act connotes criminality and criminality can be inferred from the criminal mindset and that procedure contemplated under Section 28 of D.V.Act for the purpose of Sections 12, 18, 19, 20, 21, 22, 23 and 31 of D.V.Act is the one under the Cr.P.C., and thus the proceedings under D.V.Act are criminal in nature. The contention is also that Section 31(1) of D.V.Act speaks of a cognizable offence. That Section 27 speaks of jurisdiction of the Court and the Court of Judicial Magistrate First Class or the Metropolitan Magistrate Court as the case may be constituted under Cr.P.C. is declared as a competent court to grant various orders and to try offences. Reliance is also placed upon Section 4(2) of the Cr.P.C. to contend that even the offences under other laws can be tried in accordance with the procedure under Cr.P.C., and in absence of special law i.e. D.V.Act providing a separate procedure, all the provisions of Cr.P.C. are applicable to D.V.Act. It is contended that the legislature could not have provided for a civil remedy to be dealt with in accordance with the procedure laid down in Cr.P.C. While placing reliance upon Inderjit Singh Grewal Vs. State of Punjab and another [ (2011) 12 SCC 588 ], Page 22 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT the contention is that Section 468 of the Cr.P.C. was made applicable to the proceedings under D.V.Act, and thus, according to the submissions made by learned counsel for the petitioners, the proceedings under D.V.Act can be quashed under Section 482 of Cr.P.C.
REASONS:
15. The argument that expression `violence' necessarily connotes criminality overlooks Section 3(iv) which defines economic abuse. The clause refers to deprivation of all or any economic or financial resources to which the aggrieved person is entitled or requires out of necessity including household necessities, stridhan, property jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance, disposal of household effects, any alienation of assets, shares, securities etc. in which aggrieved person has an interest or is entitled to use by virtue of domestic relationship or which may be reasonably required by the aggrieved person. Expression `domestic violence' also includes prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Thus `economic abuse' being part of expression `domestic violence' as defined in Section 3 of D.V.Act constitute abuse of various civil rights of an aggrieved person. In addition, various kinds of mental and physical harms, injuries, harassments and abuses to a woman in domestic relationship constituting various Page 23 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT offences under IPC would constitute `domestic violence'. Thus domestic violence includes objectionable acts punishable under IPC and other objectionable commissions or omissions in relation to civil or human rights of aggrieved person. Pertinently, except as under Section 31, the Magistrate is not empowered to take cognizance of any objectionable criminal acts within the meaning of IPC, while exercising the jurisdiction under D.V.Act. Having regard to the nature of reliefs which can be prayed for by aggrieved person in an application under D.V.Act, it is clear that the D.V.Act predominantly focuses on fallouts of domestic violence resulting into deprivation of or necessitating securing of various civil rights of aggrieved person like residence in a shared household, protection of aggrieved person, right to residence, monetary reliefs, orders for custody of child/children, orders for compensation etc. The criminal acts are left to be dealt with by aggrieved person with appropriate complaint even as the police officer, protection officer, service provider or Magistrate in know of domestic violence is interalia obliged to inform the aggrieved person of her right to file a complaint under Section 498A of IPC, as contemplated under Section 5 of D.V.Act. Pertinently, proviso to Section 5 cautions and reminds the police officer of his duty to proceed in accordance with law upon receipt of the information of commission of a cognizable offence. Thus, in addition to the reliefs available to the aggrieved person under D.V.Act, acts of commission of a cognizable offence against the aggrieved person can be separately proceeded with. This is one more indicator indicating the focus of D.V.Act on the reliefs for aggrieved person, other than punishment to the offender.
Page 24 of 29R/CR.MA/19853/2013 CAV JUDGEMNT 15.1 From the scheme of D.V.Act, as aforementioned, the
emphasis on `aggrieved person', `domestic violence', `domestic incident report' is eloquent. As per Section 12, aggrieved person or protection officer or any other person on behalf of the aggrieved person is entitled to move an application, and as noticed in Section 2(a), `aggrieved person' is a woman in domestic relationship with `respondent' alleging a commission of domestic violence by such respondent. Thus the application under Section 12 can be moved by or on behalf of a woman suffering from domestic violence. Thus the `domestic violence' is only the cause of action for reliefs under Sections 17 to 23 of the D.V.Act.
15.2 Further, the provisions are also made for establishment of various facilitators like shelter homes, service providers, protection officers to assist the Magistrate and aggrieved person as also to enhance her knowledge about rights available to her under D.V.Act or IPC or Dowry Prohibition Act. Thus the remedies contemplated under D.V.Act except the one under Section 31 are not remedies under criminal law. Domestic violence may confer a cause upon the aggrieved person to proceed against the `respondent' under criminal law and or under D.V.Act. Therefore, though the expression `violence' connotes criminality referable to criminal mindset, the object of act being to assist the aggrieved person suffering from domestic violence by providing to her various reliefs as above and the act of domestic violence not being punishable under D.V.Act, it cannot be said that mere use of expression `violence' would render the applications under Sections 12, 17 to Page 25 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT 24 of the D.V.Act as criminal proceedings. The fact that the civil remedies are provided to aggrieved person is also made eloquent by objects and reasons of D.V.Act as well.
15.3 True that the object of Section 31 is to punish the offender for violation of protection orders issued under Section 18 of D.V.Act. Breach of protection orders is classified as cognizable and nonbailable offence under Section 32, and upon testimony of the aggrieved person, the Court may conclude that offence under Sub sec.(1) of Section 31 has been committed by the accused. Protection order can be issued under Section 16 and its breach is cognizable under Section 32. The purpose of Sections 31 and 32 appears to be to ensure compliance of protection orders, if necessary, by enforcing a criminal machinery against the offender. It is only while hearing a case under Section 31 that a charge can be framed also under Section 498A of IPC or any other provision of that Code or the Dowry Prohibition Act, as the case may be, on disclosure of the commission of an offence under those provisions. Pertinently, except in relation to few provisions like Section 5 and 31, there is no reference to the expression `offence', `crime' or the like in entire D.V.Act. Therefore, even by virtue of doctrine of exclusion, an inference that none of the commissions or omissions except those made specifically punishable, the D.V.Act not intended to punish the `respondent'.
15.4 For the foregoing reasons, it cannot be said that the acts or omissions constituting `domestic violence' as defined in Section 3 of D.V.Act constitute an offence under D.V.Act so as to attract Page 26 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT Section 4(2) of Cr.P.C.
15.5 In contrast, in order to attract Section 4(2) of Cr.P.C., the commissions or omissions complained of must necessarily be an offence as defined in Section 2(n) of Cr.P.C. Reference to various terms as quoted in para 13.1 of this judgment as also the constitution of various courts to try offences; the procedure to investigate or inquire into the offences; obligations cast upon the police or others for prevention and detection of offences; provisions for maintenance of public order and tranquility etc., all go to indicate that predominant object of Cr.P.C. is to provide for the procedure to deal with offences. Since the scheme of Cr.P.C. predominantly prescribes a procedure to try offences, Section 482 of Cr.P.C. also can be applied in relation to offences and not in relation to civil proceedings.
15.6 The procedure contemplated under Section 28 of D.V.Act applying the Criminal Procedure Code to the proceedings under Sections 12, 18 to 23 and 31 of D.V.Act would not ipso facto attract Section 482 of Cr.P.C. Having regard to the scheme of D.V.Act, Section 28 while adopting the provision of Cr.P.C. intends to apply procedure necessary for passing orders for securing the civil rights contemplated under Sections 12, 18 to 23 of D.V.Act. To illustrate, a Magistrate may issue the summon or warrant for securing the presence of `respondent' as defined in Section 2(q) of the D.V.Act. Pertinently, Section 28, while referring to various provisions of D.V.Act prefixes the expression `offence' to Section 31 only thus making the intent of the act very specific and eloquent. In other Page 27 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT words, the expression `offence' is prefixed to Section 31 as referred to in Section 28, while the said expression is omitted in Section 28 in reference to other provisions of D.V.Act, because Section 31 declares the breach of protection order an offence and other provisions do not. Further, under the very provision, Magistrate is empowered to prescribe its own procedure as well in which event the Magistrate may not have to rely upon Cr.P.C.
15.7 Thus, mere use of the provisions of Cr.P.C. for limited purposes of Sections 12, 18 to 23 and 31 of D.V.Act would not ipso facto attract Section 482 of Cr.P.C.
15.8 Further, `domestic violence' as defined in Section 3 of the Act has attributes of crime inasmuch as such acts may constitute an offence under one or other provisions of IPC. The Magistrate is one of the authority contemplated under Cr.P.C. to deal with offences. It appears that, keeping the above aspect in view, it was deemed appropriate to authorise a judicial mind wellversed with the procedure dealing with crime, also to deal with the proceedings arising under D.V.Act since criminal acts as defined under Section 3 of D.V.Act give rise to cause of action under that Act. Furthermore, in case of breach of protection orders, the Magistrate is empowered to proceed under Section 31 of D.V.Act and also to frame charge for the offence under Section 498A of IPC. Therefore also it appears that the Magistrate has been selected as competent judicial authority to deal with the proceedings arising under D.V.Act and the Court of Sessions is contemplated as competent appellate Page 28 of 29 R/CR.MA/19853/2013 CAV JUDGEMNT authority. Thus merely because judicial authorities contemplated under Cr.P.C are found competent to deal with the proceedings arising under D.V.Act, it cannot be argued that such proceedings deal with crime.
16. The decision relied upon by learned Counsel for the petitioners in Inderjit Singh Grewal (supra) does not address the question as above. It merely invokes Section 468 of Cr.P.C. in a case arising under D.V.Act. Therefore, cannot be cited as an authority laying down the proposition of law discussed by this Court as above.
17. In above view of the matter, no substance is found in these petitions. The petitions fail and are summarily dismissed.
18. It is made clear that since the petitions are decided only on the question of jurisdiction, this Court has not entered into any of the factual dispute existing between the parties.
(G.R.UDHWANI, J.) syed/ Page 29 of 29